Tey v Optima Financial Group Pty Ltd
[2012] WASCA 193
•10 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WASCA 193
CORAM: PULLIN JA
NEWNES JA
HEARD: 7 AUGUST 2012
DELIVERED : 10 OCTOBER 2012
FILE NO/S: CACV 7 of 2012
CACV 12 of 2012
BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent
ON APPEAL FROM:
For File No : CACV 7 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 3] [2012] WADC 3
File No :APP 44 of 2009
For File No : CACV 12 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WADC 19
File No :APP 44 of 2009
Catchwords:
Practice and procedure - Appeal against dismissal of application for review of taxation of costs - Appeal against costs order on application for review - Application by respondent to strike out appeal as having no reasonable prospect of success - Effect of O 66 r 48 of the Rules of the Supreme Court 1971 (WA) -Appeal without merit
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 48
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr B W Ashdown
Solicitors:
Appellant: In person
Respondent: De Vita & Dixon
Case(s) referred to in judgment(s):
Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
Bendir v Anson [1936] 3 All ER 326
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Dart v Singer [2010] QCA 185
House v The King (1936) 55 CLR 499
Lyon v Mercer (1823) 1 Sim & St 357; 57 ER 143
Mentors Ltd v Evans [1912] 3 KB 174
Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 6 November 1996)
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Schweppes Limited v Archer (1934) 34 SR (NSW) 181
Tey v Optima Financial Group Pty Ltd [2010] WADC 98
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Tey v Optima Financial Group Pty Ltd [2011] HCASL 41
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
Tey v Optima Financial Group Pty Ltd [No 2] [2011] WADC 129
Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
JUDGMENT OF THE COURT: On 19 January 2012, in the District Court, Commissioner Gething dismissed an application by the appellant for the review of a taxation of costs by a deputy registrar. His Honour ordered the appellant to pay the respondent's costs of the review. Subsequently, on 3 February 2012, the Commissioner fixed the costs of the review in the sum of $5,332.25.
The appellant has appealed to this court against both the dismissal of the review application and the amount of the costs fixed by the Commissioner. The respondent in turn has applied to have both appeals dismissed, substantially on the basis that in each case none of the grounds of appeal has any prospect of success.
Background
At the cost of repeating to some extent what has been said more fully elsewhere (see, for instance, Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113), it is appropriate to describe briefly the background to the present appeals.
The appellant engaged the respondent to audit the annual accounts of her business to meet certain statutory requirements. The respondent carried out the work but the appellant did not pay the fee of $550. The respondent commenced proceedings in the general jurisdiction of the Magistrates Court. The respondent obtained judgment after trial in the sum of $550 and allowable costs of $368.05. Neither party had legal representation.
The appellant appealed to the District Court. The respondent applied under s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCP Act) for an order that the appeal be struck out on the grounds that the costs of the appeal were disproportionate to both the amount of the claim and the nature of the case and, alternatively, under s 43(4) of the MCCP Act on the basis that the grounds of appeal had no reasonable prospect of success. On 25 June 2010, Davis DCJ dismissed the appeal: Tey v Optima Financial Group Pty Ltd [2010] WADC 98. Her Honour found for the respondent on both grounds.
An appeal by the appellant to this court was dismissed: Tey v Optima Financial Group Pty Ltd [2010] WASCA 219. The appellant's application for special leave to appeal to the High Court was also dismissed: Tey v Optima Financial Group Pty Ltd [2011] HCASL 41.
On 11 July 2011, the respondent filed a bill of costs in respect of the appeal to the District Court. The bill of costs was for a total amount of $10,422.50. On 5 August 2011, Deputy Registrar Hewitt taxed the bill in an amount of $8,023.19, including the taxing fee. The deputy registrar deferred signing the certificate to allow the appellant to file objections under O 66 r 53 of the Rules of the Supreme Court 1971 (WA). The appellant's objections were filed on 18 August 2011. They were in the following terms:
OBJECTION TO TAXATION OF COSTS HELD ON 5 AUGUST 2011
(1)The Appellant objects to the Bill taxed on 5 August 2011 before Deputy Registrar Hewitt (refer to contents of transcript of proceedings on 5 August 2011). The Registrar allowed the Respondent to take advantage of the Appellant's situations. The Appellant was not prepared for taxation of Bill of Costs that day. And therefore, it could be said that the Appellant was prejudiced.
(2)The taxation of the bill of costs lodged by the Respondent's Lawyers De Vita + Dixon Lawyers on 11 July 2011 should not have been listed for taxation on 5 August 2011 as such date was not consented by both parties, and taxation of the Bill of Costs should not have gone ahead.
(3)An application fee $193.00 paid by the Respondent to strike out the appeal on the issue of a Chamber Summons (see page 44 of transcript of proceedings) was not included and reflected in the Respondent's Bill of Costs, therefore the Respondent's Bill of Costs did not show the true story of this case matter.
OBJECTIONS OF ITEMISED BILL OF COSTS:
Item of Bill
Objection: Whole or Part
Reasons: Error in Principle because:
4.
Whole
Little if any allowance should be made for getting up the appeal because no getting up should have been undertaken until after the strikeout application.
5.
Whole
The strike out application was not complex and need have proceeded only on the proportionality argument i.e. that only $500 was in issue + interest.
7.
Whole
Excessive.
2 short sentences only for an order extracted.
8.
Whole
Excessive. Bill of Costs inaccurate.
9.
Whole
Preparation time would have been much less had the instructing lawyer appeared at the taxation.
The relevant items in the bill of costs were:
4.Getting up appeal for hearing $2,871
5.Proceedings in chambers (strike out application) $3,190
7.Settling and extracting order $209
8.Drawing bill of costs, copies and service $440
9.Preparing for and attending taxation $594
On 24 August 2011, the deputy registrar declined to vary the taxed amount: Tey v Optima Financial Group Pty Ltd [No 2] [2011] WADC 129.
On 13 September 2011, the appellant applied to a judge of the District Court to review the decision of the deputy registrar. The power of a judge to review a taxation following the lodgement of objections is contained in O 66 r 55 of the Rules of the Supreme Court. In substance, a judge may intervene where the taxing officer has made an 'error in principle' in respect of an item or items in the bill of costs objected to under O 66 r 53.
The application for review came before the Commissioner on 9 December 2011. The appellant sought to challenge the entirety of the bill of costs. The Commissioner refused to allow her to do so, the review process being limited to the items the subject of the appellant's objections. His Honour found that the appellant had failed to establish an error in principle in respect of any of the relevant items. He accordingly dismissed the review application: Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3.
The Commissioner indicated that it was his intention to fix the costs of the review application to minimise the need for future hearings. The review application came back before him on 3 February 2012 for that purpose. His Honour fixed the costs in the sum of $5,332.25 and ordered the appellant to pay that amount to the respondent within 21 days: Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19.
As we have mentioned, the appellant has appealed to this court against the decision of the Commissioner to dismiss the application for review (CACV 7 of 2012) and in respect of the costs of it (CACV 12 of 2012). It is convenient to consider each appeal in turn.
Appeal against dismissal of the application for review: CACV 7 of 2012
The grounds of appeal
The appellant relies on the following grounds of appeal:
1.The learned Commissioner erred, as a matter of law in the exercise of his discretion by failing to accept that Judge Davis' reasons could only mean that only [sic] the costs of striking out the appeal were not recoverable.
2.Because the primary application was the strike out application any allowance relating to the appeal ought to have been minimal, for there was no need to consider or prepare for argument on the appeal. His Honour erred in the exercise of his discretion by not so finding.
3.The Bill of Costs was inaccurate. The claims on the Bill of Costs were excessive. His Honour erred in the exercise of his discretion by not so finding. Also this appeal should have been put on hold until the Appellant's s 36 Application filed on 26 March 2012 in the Supreme Court of Western Australia is heard and judgment delivered.
4.The Appellant was prejudiced. His Honour erred in fact by not so finding. The taxation allocator was signed by Deputy Registrar Hewitt on 1 November 2011 when the review of taxation was in progress.
The disposition of CACV 7 of 2012
The question before the Commissioner was whether the taxing officer had made an error in principle in respect of any of the items contained in the appellant's objections. (We note in passing that the express limitation on judicial review to an 'error in principle' appears to be unique to this state.)
An error in principle may occur both in determining whether an item should be allowed and in determining the amount that should be allowed for an item: Schweppes Limited v Archer (1934) 34 SR (NSW) 181, 183. Where the decision in question involves an exercise of the taxing officer's discretion, an error in principle will occur where there has been an error of the kind identified in House v The King (1936) 55 CLR 499, 504 ‑ 505; Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627. Thus, an error in principle may be inferred where the amount allowed for an item is so low or so high that no taxing officer, acting reasonably, could have taxed the particular item at the amount allowed: Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 6 November 1996), 9 ‑ 10.
As we have said, the Commissioner found there had been no error in principle by the taxing officer. None of the grounds of appeal is capable of establishing error on the part of the Commissioner in making that finding. We will take each in turn.
Ground 1
The first ground of appeal turns on the appellant's contention that no order was made by Davis DCJ in respect of the costs of the respondent's strike out application; that is, the order for costs made by Davis DCJ dealt only with the costs of the substantive appeal and did not extend to the costs of the strike out application.
Whilst the Commissioner dealt with this point as part of the appellant's objections to items 4 and 5 of the bill of costs, it is not clear that it is in fact a matter which was raised in the appellant's objections to the taxation. The objection to item 4, as we understand it, goes to the amount allowed rather than to an assertion that the order for costs did not cover the costs of the strike out application. The point has nothing to do with item 5.
In any event, the point is without substance. The Commissioner correctly found that the order of Davis DCJ included the costs of the strike out application. That application was the matter before Davis DCJ and it was the respondent's success on that application which led her Honour to dismiss the appeal. The usual rule is that a successful party is entitled to an order for costs. There is nothing in her Honour's reasons which might suggest that she intended to deny the respondent its costs of the application. In making an order that the appellant pay the respondent's costs of the appeal, her Honour clearly intended that the costs of the appeal include the costs of the application.
Moreover, even if the costs order were taken to be silent as to the costs of the strike out application that would not assist the appellant. The position in such circumstances has been established since at least the decision of Leach VC in Lyon v Mercer (1823) 1 Sim & St 357; 57 ER 143. There it was held that where nothing is said as to the costs of an interlocutory application, if the application is successful and the other party opposed the application, the successful party's costs are its costs in the cause. Conversely, if the applicant is unsuccessful, the opposing party's costs are its costs in the cause. If the application was not opposed, then both parties' costs are costs in the cause. See also Mentors Ltd v Evans [1912] 3 KB 174, 179; Bendir v Anson [1936] 3 All ER 326; Dart v Singer [2010] QCA 185.
That principle has been enshrined in O 66 r 48 of the Rules of the Supreme Court, which applies to the District Court pursuant to s 87(1) of the District Court of Western Australia Act 1969 (WA). Relevantly, O 66 r 48(1) is as follows:
Unless the court otherwise orders, the costs of a motion or application in an action shall be deemed to be part of the costs of the action of the party in whose favour the motion or application is determined unless the motion or application is unopposed.
An 'action' is defined in the District Courtof Western Australia Act, as it is in the Supreme Court Act 1935 (WA), to mean a civil proceeding commenced by writ or in such other manner as is prescribed by the rules: s 6, s 4 respectively. It is clearly wide enough to include an appeal.
We would, however, respectfully agree with the observation of the Queensland Court of Appeal in Dart v Singer that it is prudent for a successful party to follow the common practice of requesting specific costs orders on an interlocutory motion or application, to avoid later confusion and to ensure clarity [5]. That is particularly the case where there might be room for argument over who was the successful party on the application. In the present case there is no room for argument.
It follows that even if the order of Davis DCJ were to be regarded as silent as to the costs of the strike out application, the costs of that application were the respondent's costs in the appeal. The appeal has been dismissed and the respondent is entitled to those costs.
Ground 2
This ground relates to item 4 of the appellant's objections. It involves, in effect, a contention that the Commissioner should have found that the taxing officer erred in principle in allowing any substantial amount in respect of getting up the appeal. The appellant submitted that there should have been little or no allowance for getting up the appeal because no, or no significant, getting up should have been undertaken by the respondent until after the strike out application had been determined.
The Commissioner correctly found that the approach taken by the taxing officer did not disclose any error of principle. In his reasons for judgment, the taxing officer pointed out that initially the respondent was unrepresented in the appeal. The respondent then engaged solicitors and the strike out application was made. By that time, the appeal had already been set down for hearing. The appellant then became involved in preparation for both the appeal and the strike out application 'in tandem'. The taxing officer found that the respondent had incurred costs in respect of both getting up the appeal and the strike out application (see Tey v Optima Financial Group Pty Ltd [No 2] [2011] WADC 129 [3]). In the circumstances, it was clearly open to the taxing officer to find, as at least implicitly he did, that the work done by way of getting up was appropriately done.
Nor has any error in principle been shown in relation to the amount allowed. Whilst the amount is high, having regard to the fact that the appeal had been set down for hearing it is not so high as to be capable of revealing a miscarriage of the taxing officer's discretion. We would, however, observe that the fact the application under s 43(3) of the MCCP Act was brought so late was a matter which, if raised before Davis DCJ, might have had a bearing on whether it was appropriate that the respondent should have all of its costs of the appeal. But the order having been made, that was not a matter for the taxing officer.
In our view, this ground of appeal has no prospect of success.
Ground 3
This ground is in two parts. We understand the first part to be a contention that the Commissioner ought to have found that the taxing officer erred in principle in allowing the amounts he did for each of items 5, 7, 8 and 9. We do not consider there is any merit in that.
In relation to item 5, it appears from the appellant's objections that she contends, in effect, that the taxing officer should have found it was unreasonable for the respondent to have relied in the strike out application on both the disproportionate costs of the appeal and its lack of any reasonable prospect of success. There is no substance in that. And while the amount allowed was high, having regard to the nature of the application it was not so high as to be capable of revealing a miscarriage of the taxing officer's discretion.
The objections to items 7, 8 and 9 went simply to the quantum of the amount allowed. The Commissioner was clearly correct in concluding that no error in principle had been disclosed.
The second part of this ground is misconceived. It has also been overtaken by events. On 4 July 2012, the appellant's application under s 36 of the Magistrates Court Act 2004 (WA) was dismissed: Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248. (We note in passing that the appellant has appealed against that decision.) In any event, the existence of a subsequent and unrelated application to challenge the original order of the magistrate provides no basis for this appeal to be held over until that application has been determined. Whatever its ultimate outcome, the application has no bearing on the matters before us.
Ground 4
This ground proceeds upon a misconception as to the process of review of a taxation of costs and must fail. The practice is that a taxing officer will not sign a certificate of taxation so soon as to deprive a party of the opportunity to lodge an objection to the taxation. A certificate which is signed so quickly as to deprive a party of that opportunity is liable to be set aside: Australian Coal & Shale Employees’ Federation v Commonwealth (624). No such issue arose in this case. The appellant was given time to lodge objections and did so. Those objections were considered and rejected by the taxing officer. It was then incumbent upon the taxing officer to sign the certificate. In fact, he did not do so until some months later, on 1 November 2011. The appellant had 14 days after the certificate was signed within which to seek review by a judge under O 66 r 55. She availed herself of that process. No question of prejudice to the appellant arises.
Conclusion
In our view, none of the grounds of appeal have any prospect of success and this appeal should be dismissed.
We turn then to the appeal against the costs order made by the Commissioner in respect of the review.
Appeal against the costs order on the review: CACV 12 of 2012
Grounds of appeal
The appellant relies on the following grounds of appeal:
1.The learned Commissioner erred, as a matter of law in the exercise of his discretion by failing to accept that Judge Davis' order could only mean that only [sic] the costs of striking out the appeal were not recoverable. Therefore the appellant's application for review of taxation filed on 13 September 2011 should not be dismissed.
2.That Judge Davis' order is not subject to interpretation. By costs of the appeal her Honour meant getting up costs at minimal costs. The Commissioner erred in the exercise of his discretion by not so finding.
3.The learned Commissioner awarded to the respondent fixed costs for the review in the sum of $5332.25. This amount is excessive, subjective and unjust. His Honour erred in the exercise of his discretion by accepting that [the respondent's solicitor's] affidavit of 12 January 2012 on pages 49 and 50 satisfied him, a sum of $4684.25 [sic $4694.25] to be included in the fixed costs. The difference was $638.00.
(a)The appellant was prejudiced.
(b)Also this appeal should be put to a halt until the appellant's s 36 application filed on 26 March 2012 in the Supreme Court of Western Australia is heard and delivered.
Disposition of the appeal
Grounds 1 and 2
These grounds do not relate to the costs of the review but seek to argue again complaints about the review itself. They are irrelevant to this appeal. Moreover, they have been dealt with above.
Ground 3
This ground is in three parts. The first part is, in effect, a contention that the Commissioner erred in the exercise of his discretion in fixing the respondent's costs of the review in the sum of $5,332.25. However, it is unclear whether the appellant's complaint concerns to some specific error relating to the affidavit of the respondent's solicitor or whether it is wider than that. Regrettably, the appellant's written submissions are, with respect, at the least obscure. Her oral submissions did not provide any greater assistance.
So far as the ground of appeal relates to the affidavit, it is incomprehensible. Pages 49 ‑ 51 of the affidavit contain a schedule of party and party costs, drawn by reference to the applicable scale of costs and deposed to in par 15 of the affidavit. The schedule sets out costs totalling $4694.25 (not $4684.25 as appears in the ground of appeal). If the complaint is that the Commissioner allowed a sum in excess of that amount, it overlooks the fact that the Commissioner also allowed the respondent the further amounts it claimed of $429 for preparing the bill of costs, $429 for attending the costs hearing, and $209 for extracting the order. That led to the total of $5,332.25.
If the ground of appeal is intended to go beyond the issue of the affidavit, the appellant's complaint would seem to be simply that the amount fixed by the Commissioner was too large.
In that regard, the relevant principles are not controversial. The purpose of fixing costs is to avoid the expense and delay involved in taxation. The court should fix costs only where it has before it sufficient information to enable it to determine the costs fairly. Where the court fixes costs, it will not subject the costs to the detailed examination of a taxation but may apply a broader brush. See generally Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] ‑ [27].
The fixing of costs involves an exercise of discretion. In order to attract appellate intervention, the appellant must identify an error of the sort referred to in House v The King. No such error has been identified. The Commissioner had heard the review application and accordingly was well‑acquainted with what it involved. In addition, he had before him an affidavit of the respondent's solicitor deposing as to the costs that had been incurred by the respondent. The Commissioner was in a position to fix the costs. There is nothing to suggest that he erred in doing so. The amount awarded by the Commissioner by way of costs is not so large as of itself to bespeak error. The ground of appeal must fail on this issue.
The second part of this ground of appeal is a contention by the appellant that she was 'prejudiced'. That is explained in her written submissions to be a complaint that the Commissioner allowed her 'only' 21 days to pay the costs. There is no explanation as to why that constituted an error by his Honour and no error is apparent. The contention is misconceived.
The third part repeats a ground asserted in CACV 7 of 2012 and has been considered above. For the same reasons, it has no substance in this appeal.
The appeal in CACV 12 of 2012 should be dismissed.
Other matters
We have referred in our reasons for judgment in CACV 11 of 2012, Tey v Optima Financial Group Pty Ltd [2012] WASCA 192, to the appellant's applications for, first, an adjournment and, secondly, for us to disqualify ourselves on the ground of a reasonable apprehension of bias. Those applications also applied to these matters. We refused the applications for the reasons set out in [2012] WASCA 192.
Conclusion
Both appeals should be dismissed.
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